Major defect in Public Corruption Prosecution Improvements Act

The Senate is soon expected to consider a bill intended to provide new tools to help prosecutors target corruption among public officials. While aspects of the measure are appropriate and deserving of support, the central provision — which rewrites and greatly expands the “illegal gratuities” statute — would give vast and unneeded discretion to federal prosecutors. In its present form, the proposed remedy in the bill is far worse than the harm it seeks to redress.

The part of the bill that rewrites the illegal gratuities statute seeks to reverse the Supreme Court’s 1999 decision in United States v. Sun-Diamond, in which a unanimous court overturned Sun-Diamond’s conviction in connection with gifts the company provided then-Secretary of Agriculture Mike Espy. The court ruled that the government failed to establish any nexus between the gifts provided to Espy — including tickets to the U.S. Open tennis tournament, luggage, meals and a crystal bowl — and any pending matter over which Espy had influence. Rather, the jury was instructed that it could convict Sun-Diamond for an illegal gratuity if the gifts were provided to Espy simply because of his official position in public office.

PCPIA would effectively overrule the Sun-Diamond holding by eliminating the requirement that there be a linkage between the gift and an official action by a public official. Under the bill, the gratuities statute would be violated whenever a gift is given to a public official “for or because of the official’s or person’s official position,” regardless of whether any official act was taken.

In his opinion overturning Sun-Diamond’s conviction, Justice Antonin Scalia identified a host of absurd results if the gratuities statute did not require a linkage between the gift and an official act: What about the team jersey given to the president when a championship team visits the White House? Or the complimentary lunch provided by a group of farmers to the secretary of agriculture, given in conjunction with the official’s speech about farm policy? In both instances, the gifts would be given to the official simply because of the official’s position in the government, not as a reward for any official act.

Backers of PCPIA apparently believe they have addressed Justice Scalia’s concerns by creating a statutory exception for gifts that are otherwise permitted by rules or regulations. Since members of Congress and their staff, as well as members of the executive branch, can receive gifts of nominal value from non-lobbyists, the Sun-Diamond examples would not create criminal liability.

But this “fix” hardly solves the problem. Criminal liability for gratuity violations may now hinge on whether or not the Byzantine and constantly evolving House and Senate gift rules are violated. Only someone unfamiliar with these arcane rules could derive comfort from this legislative fix.

Not only do the gift rules of the House and Senate differ, but both are open to interpretation and guesswork. For example, the gift rules generally prohibit providing lawmakers with meals. Appetizers, however, if given in certain settings, are permitted. So: Hot dogs and hamburgers are prohibited; pigs-in-a-blanket and sliders are fine. Will anyone be comfortable having a jury determine criminal liability based upon whether the food was an entrée or finger-food?

Moreover, a gift rule violation for congressional officials and staff is currently only a potential ethics violation, and, unless done corruptly, only a possible civil infraction for the lobbyist. Under PCPIA, however, both the giver and recipient of a gift given in violation of the rules would be facing the possibility of a federal indictment and prison sentence.

As for the private, non-lobbyist who violates the gift rule by taking a congressional staffer out for a meal that costs over $50? Presently, he or she would face no sanction for a violation of the gift rule. Post-PCPIA, the non-lobbyist gift-giver is a potential felon. It would be no defense that the gift in question was unconnected from any official action or that the individual had no knowledge of the congressional gift rules. The mere fact that the meal was provided because of the staffer’s status would make potential felons out of both the private citizen and the staffer.

The bill also has other far-reaching and undesirable consequences. For example, the gift rules apply to all employees of a company if that company has hired even one lobbyist. So the manager of a newly opened bank branch in Topeka is bound by the gift rules if his company employs even a single lobbyist in Washington. Under PCPIA, if this branch manager buys a congressman’s district director lunch, he has potentially committed a felony, as has the district director.

Some will be untroubled by the prospect of gift-ban violators facing the possibility of felony convictions and jail sentences. The desire for clean government is both natural and understandable. But the legislation overcompensates for this sentiment by criminalizing gift-giving based solely upon the recipient’s status as a public official.

Federal prosecutors already possess a toolbox filled with available statutes to combat corruption. This is one tool that will cause far more harm than good.

Zeidenberg, a former federal and state prosecutor, is a litigation partner in the Washington, D.C. office of DLA Piper, whose primary focus is defending individuals and businesses in white-collar criminal matters and related issues involving corporate governance and internal fraud investigations.